NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 19, 2014
Decided January 20, 2015
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐1339
TILLMAN LIGGINS III, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12 C 4010
CAROLYN W. COLVIN,
Acting Commissioner of Social Security Arlander Keys,
Defendant‐Appellee. Magistrate Judge.
O R D E R
Tillman Liggins sought disability benefits based on chronic back pain, morbid
obesity, and bilateral hand pain with numbness and tingling, but an administrative law
judge found that despite these conditions Liggins retained the residual functional
capacity (RFC) to perform sedentary work. Liggins now challenges the ALJ’s findings;
he focuses particularly on the RFC the ALJ used, the ALJ’s negative credibility
assessment, and the weight the ALJ gave to the opinion of Liggins’s treating physician.
Because substantial evidence does not support the ALJ’s decision, we vacate and
remand.
No. 14‐1339 Page 2
I
At the age of 41, Liggins applied for disability insurance benefits. Back problems,
he asserted, had finally rendered him unable to work. Liggins is morbidly obese with a
body mass index (BMI) that fluctuates between 48.1 and 50.77. In the past, he worked at
a nightclub, first as a lounge manager for eight years and then as a security manager for
nearly one more. For a time he did construction work and television installation, as well
as some side mechanical jobs for family and friends. But he has not worked since
February 2010, when lower back pain, numbness in his left leg, and numbness in the
fingertips of both his hands, left him unable to hold a job.
In March 2010 he reported joint pain to his treating physician, Dr. Seth Osafo, an
internist and director of a clinic in Bolingbrook, Illinois, who prescribed him an
over‐the‐counter painkiller and recommended that he exercise and lose weight. Dr.
Osafo did not observe any back abnormalities. Three months later Liggins reported to
Dr. Osafo that he had injured himself while moving heavy furniture and was
experiencing moderate lower back pain that radiated to his left thigh. Dr. Osafo noted
moderate tenderness of the muscles surrounding the spine and observed that Liggins
could not tolerate a straight‐leg‐raise test because of pain. The doctor also reported
Liggins’s complaints of worsening parethesias (tingling sensation in the skin, akin to a
limb “falling asleep,” often a result of disc degeneration and consequent pressure on the
nerves) that was causing pain in both hands. Dr. Osafo prescribed a narcotic‐like pain
reliever for his back pain and ordered a nerve conduction study.
Further testing revealed nerve damage in both his legs and arms. A nerve
conduction study showed damage to the nerves providing sensation to the lower and
inner leg, thigh, and foot. A sensory study of the neck showed damage to the nerves
providing sensation to the thoracic and abdominal walls, shoulder, inner arm, elbow,
hand, and wrist. Dr. Osafo interpreted these findings as showing a brachial plexus
lesion (damage to the nerves of the shoulder, arm, and hand), parethesias/numbness,
low back pain, and inflammation of the spinal nerve roots.
In July 2010 Liggins underwent two MRIs. The first, of his neck, showed reduced
flexibility resulting from disc dehydration and a narrowing of the openings through
which nerves pass. The second MRI, of his lower back, showed a narrowing of the
nerve openings and pressure on discs from disc protrusion, bulging, and spurring. Dr.
Osafo continued to prescribe prescription painkillers, which gave Liggins some relief
from back pain.
No. 14‐1339 Page 3
In August 2010, Liggins saw Dr. Meda Raghavendra, a pain specialist at Loyola
Medical Center, who reviewed an MRI that Liggins brought with him and diagnosed
signs of mildly degenerating discs. An examination showed that Liggins’s lumbar
flexion was limited to sixty degrees (normal is ninety), his lumbar extension was twenty
degrees (normal is thirty degrees), and his left hip flexor muscle showed mild
weakness. Dr. Raghavendra administered an epidural steroid injection. Dr.
Raghavendra’s diagnosis was confirmed the next month by a Loyola physiatrist, who
examined Liggins and noted an antalgic gait (an abnormal gait adopted to
accommodate pain).
On a form labeled “Physical Residual Functional Capacity Assessment,” Dr.
Francis Vincent, who was consulting for the Social Security Administration, reviewed
the records and concluded in August 2010 that Liggins could stand, walk, and sit for six
to eight hours a day because he had normal muscle strength. Dr. Vincent recognized
that Liggins had some limitations, but “his statements of extreme limitations are
disproportionate to the actual findings in file and are considered partially credible.”
Another reviewing (but non‐examining) physician agreed with these findings in
December 2010.
Later examinations continued to reveal significant problems. In November 2010
the Loyola physiatrist saw Liggins again and found chronic left lumbar radiculopathy
(inflammation or irritation of a nerve root in the lumbar region) and damage or disease
affecting the leg nerve. In January 2011 Dr. Athena Kostidis, a neurologist, examined
Liggins and detected numbness in the left fifth digit that might have resulted from
ulnar neuropathy (i.e. a trapped or pinched nerve in the wrist or elbow) or nerve root
compression in the neck. Dr. Kostidis also ordered a sleep study, which revealed that
Liggins had moderate sleep apnea. During the first half of 2011, Dr. Osafo found
continued tenderness in the muscles surrounding the spine and a continued inability to
complete a straight‐leg‐raise test because of pain. At the April 2011 exam Dr. Osafo
noted that Liggins walked with a cane.
Liggins had another epidural steroid injection in June 2011. This did not alleviate
his pain, and he was referred for a surgical consultation, after which he was referred to
physical therapy. On a form entitled “Musculoskeletal Defects or Fractures Report,” Dr.
Osafo noted in July 2011 that Liggins experienced acute pain from “bending, prolonged
sitting, prolonged standing, climbing stairs, [and] stooping.” In August 2011 an MRI
showed herniated discs.
No. 14‐1339 Page 4
II
At the hearing before the administrative law judge in September 2011, Liggins
pinpointed the source of his lower back pain to the area between the buttocks and the
back, and he rated the pain between an eight‐and‐a‐half and nine on a scale of ten. He
said that he had to lie down to alleviate the pain, usually for most of the day, and that
sitting, standing, and walking exacerbated the pain. He took a variety of prescription
painkillers, muscle relaxers, and sleep aids, but these medications made him drowsy; he
took as many as four or five naps a day. He could stand ten to thirty minutes, walk for
ten to fifteen minutes, and sit for thirty minutes if he kept shifting his position. He could
not put on his own shoes or pants. It took him twenty to thirty minutes to walk up the
fifteen stairs in his house. He could not do housework or yard work and had to rely on
family members to cook and care for his two younger daughters. He said he could no
longer use the computer, because it was painful for him to sit for a prolonged period at
a desk.
A vocational expert also testified. According to the VE, Liggins could perform his
past work as a lounge manager if he were limited to light work under certain conditions
(he needed to avoid concentrated exposure to hazards, could only occasionally balance,
stoop, climb ramps and stairs, and could never climb ladders, ropes, scaffolds, or kneel,
crouch, and crawl). The VE thought that if Liggins were limited to sedentary tasks, he
could work as an automobile locator for dealerships, repair order clerk, or order clerk in
the food and beverage industry, even if he needed to use his cane. If Liggins could
perform only unskilled sedentary work, he could work as a surveillance monitor or
document preparer.
The ALJ applied the required five‐step analysis, see 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4), and drew the following conclusions:
Step 1: Liggins had not engaged in substantial gainful activity since the alleged
onset date;
Step 2: Liggins’s degenerative disc disease, sleep apnea, and morbid obesity
constituted severe impairments;
Step 3: None of his impairments matched a listed impairment;
Step 4: Liggins had the RFC to perform sedentary work with limitations on
climbing, ramps, stairs, balancing, stooping, kneeling, crouching, and crawling;
and
No. 14‐1339 Page 5
Step 5: Given his age, education, work experience, and RFC, Liggins could work
as an automobile locator, a repair order clerk, an order clerk, or, if limited to
unskilled work, a surveillance system monitor.
In determining Liggins’s RFC, the ALJ expressly declined to give controlling
weight to the opinion of Liggins’s treating physician, Dr. Osafo, whose views she said
were “vague and imprecise as to the degree of limitation the claimant’s pain would
cause.” She found the clinical findings to be “relatively benign.” She also thought that
Liggins’s credibility was “undermine[d]” by “inconsistent information.” For example,
he testified that he could not work after February 2010 but was performing strenuous
activity well afterward, even moving heavy furniture; he testified that he worked as a
mechanic as a side job, but he grossed receipts of more than $10,000; he testified that he
stopped smoking and drinking, but he acknowledged in February 2011 that both
practices were “current”; he testified his wife helps with most daily activities, yet she
worked six days a week; and his work history was sporadic. The Appeals Council
denied review.
The magistrate judge, presiding by consent, concluded that substantial evidence
supported the ALJ’s decision. The judge agreed with the ALJ’s decision not to give the
treating physician’s opinion controlling weight. The judge was also satisfied with the
ALJ’s determination of Liggins’s RFC because she had addressed Liggins’s various
impairments and meaningfully considered all the medical evidence. The judge finally
determined that the ALJ adequately explained why she found Liggins not credible.
III
On appeal, Liggins attacks the ALJ’s RFC, her treatment of Dr. Osafo’s opinions,
and her rejection of his credibility. We agree with him that there are problems with each
of these.
With respect to the RFC assessment, Liggins argues that the ALJ failed to
substantiate her conclusion that he could sit the six to eight hours required for
sedentary work despite his testimony that he could not sit for more than thirty minutes
and Dr. Osafo’s opinion that he could not sit for prolonged periods. An ALJ “must
evaluate all limitations that arise from medically determinable impairments, even those
that are not severe, and may not dismiss a line of evidence contrary to the ruling.”
Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). See also Hughes v. Astrue, 705 F.3d 276,
277–79 (7th Cir. 2013) (ALJ needed to explain how determined claimant’s capabilities);
No. 14‐1339 Page 6
Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (same). Liggins testified that his obesity
and back pain limited his ability to sit for more than thirty minutes, yet the ALJ did not
include a sitting limitation in the hypotheticals she posed to the VE. She also ignored
the medical evidence (from both Dr. Osafo and the MRIs) suggesting that Liggins had
sitting limitations. The government tries to salvage the ALJ’s finding with the opinions
of two state agency reviewing experts who opined that Liggins could sit for six to eight
hours. But the ALJ nowhere relies on those reports, and so the Chenery doctrine
prohibits the Commissioner’s lawyers from relying on them now. See SEC v. Chenery
Corp., 318 U.S. 80, 87–88 (1943); Hanson v. Colvin, 760 F.3d 759, 762 (7th Cir. 2014).
Liggins next argues that the ALJ gave too little weight to Dr. Osafo’s opinion that
he could not sit for a prolonged period. The ALJ explained that she minimized this
opinion because it was based on Liggins’s subjective complaints and was too vague
about the degree of limitation that his pain would probably cause. A treating
physician’s opinion, however, is entitled to controlling weight if it is consistent with
objective medical evidence and the other substantial evidence in the record. 20 C.F.R
§ 404.1527(c)(2); Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). The ALJ here ignored
evidence in the record that was consistent with Dr. Osafo’s opinion. For example, Dr.
Raghavendra diagnosed Liggins with disc degeneration and gave him an epidural
steroid injection for his pain; the physiatrist opined that the nerves in his back were
inflamed; and the nerve studies and the MRIs showed nerve damage in Liggins’s back,
legs, shoulders, and arms. All of this evidence was consistent with Dr. Osafo’s opinion
that Liggins could not sit for prolonged periods. The ALJ downplayed these findings as
“relatively benign,” but she discussed only Dr. Kostidis’s neurological examination as
well as a hip x‐ray that showed no hip abnormalities and Dr. Osafo’s suggestion that
Liggins lose weight and exercise. The ALJ erred by handpicking certain evidence and
disregarding other key evidence. Scrogham v. Colvin, 765 F.3d 685, 696–99 (7th Cir. 2014);
Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009).
Liggins finally argues that the ALJ erred by using boilerplate that we have
repeatedly criticized: that his “statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are inconsistent
with the above residual functional capacity assessment.” See Bjornson v. Astrue, 671 F.3d
640, 645–46 (7th Cir. 2012). We have found this statement problematic because it puts
“the cart before the horse, in the sense that the determination of capacity must be based
on the evidence, including the claimant’s testimony, rather than forcing the testimony
into a foregone conclusion.” Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). Here the
inconsistencies to which the ALJ points—his ability to move furniture, his smoking and
No. 14‐1339 Page 7
drinking, his side jobs as a mechanic, his wife’s handling of daily activities, and his
sporadic work history—have minimal, if any, bearing on his reports of pain and the
limitations that he reported. We are particularly troubled by the ALJ’s suggestion that
she should discredit Liggins because he testified that his wife worked six days a week
and helped with daily activities; numerous studies show that women working outside
the home still routinely perform more housework than men. See American Time Use
Survey Summary, BUREAU OF LABOR STATISTICS (June 18, 2014, 10:00 AM), available at
http://www.bls.gov/news.release/atus.nr0.htm (finding that 83% of women versus 65%
of men spent time doing household activities on average day with women spending 2.6
hours compared to men’s 2.1 hours).
Because the ALJ failed to provide a reasoned basis for excluding a sitting
limitation from Liggins’s RFC, wrongly discounted his treating physician’s opinion that
he could not sit for prolonged periods, and erred in finding that Liggins was not
credible, we VACATE and REMAND for further agency proceedings consistent with this
order.